Report for the Hearing delivered in Case C-186/88
I — Summary of the facts
1. The common organization of the market in poultrymeat is governed by Regulation No 2777/75 of the Council of 29 October 1975 (Official Journal 1975, L 282, p. 77).
2. In order to counteract the barriers resulting from disparities between national legislation on health requirements, on 15 February 1971 the Council adopted Directive 71/118 on health problems affecting trade in fresh poultrymeat (Official Journal, English Special Edition 1971 (I), p. 106), which was designed to ensure uniformity of the health conditions for poultrymeat in abattoirs and for storage and transport thereof. The directive provides in particular for the issue of a health certificate drawn up in the country of despatch which must accompany the consignment of meat until it reaches its destination.
3. Council Directive 83/643/EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States (Official Journal 1983, L 359, p. 8), as amended by Council Directive 87/53 of 15 December 1986 (Official Journal 1987, L 24, p. 33) applies, by virtue of Article 1(1) thereof, to physical inspections and administrative formalities concerning the transport of goods which have to cross an internal frontier within the Community or an external frontier, where carriage between Member States involves crossing a third country. Article 2 provides that the Member States are to take the necessary measures to ensure that in the course of any carriage operation the various inspections and formalities are carried out with the minimum delay necessary and, as far as possible, in one place, with the inspections being carried out by means of spot checks, except in duly justified circumstances.
4. The inspection of poultrymeat imports into the Federal Republic of Germany is governed by the Geflügelfleischhygienegesetz (Law on poultrymeat hygiene) of 12 July 1973 (BGBl I, p. 776) and by the Geflügelfleischuntersuchungsverordnung (Regulation on the inspection of poultrymeat) of 3 November 1976 (BGBl I, p. 3077), as amended by a regulation of 27 July 1978 (BGBl I, p. 1150). Under Article 24 of the law, every import of fresh poultrymeat and prepared poultrymeat into the Federal Republic of Germany must be declared in due time to the appropriate frontier office in order to be inspected. For that purpose, the nature and quantity of the goods must be indicated, and also the time at which the inspection is to take place. According to Article 7 of the regulation, the inspection is intended to determine whether the imported consignment is accompanied by a valid health certificate, whether the goods contained in the consignment correspond to those indicated in the certificate and whether certain markings have been affixed. The inspection is carried out by veterinary officers.
5. By order of 26 February 1987, the Bundesverwaltungsgericht (Federal Administrative Court) referred to the Court for a preliminary ruling a number of questions on the interpretation of Article 30 of the EEC Treaty, of Regulation No 2777/75 and Directive 83/643, to enable it to determine whether the German inspection procedures were compatible with Community law (Case 190/87).
6. On 12 June 1987, the Commission sent to the Federal Republic of Germany a letter of formal notice, drawing its attention to the fact that the German rules were contrary to Community law.
7. In its reply of 10 August 1987, the Government of the Federal Republic of Germany asked the Commission not to proceed with its action in view of the fact that a preliminary ruling was awaited from the Court.
8. On 16 March 1988, the Commission sent the German Government a reasoned opinion, alleging that it had failed to fulfil its obligations under Article 30 of the EEC Treaty, under Regulation No 2777/75 and under Directives 71/118 and 83/643.
9. In its reply of 19 April 1988, the German Government contended that it had not contravened Community law.
10. By judgment of 20 September 1988 in Case 190/87 Oberkreisdirektor des Kreises Borken and Another v Handelsonderneming Moorman 5K[1988] ECR 4689, the Court ruled, in reply to the questions referred to it by the Bundesverwaltungsgericht that:
‘1. Systematic inspection of poultrymeat by a veterinarian or hygiene expert on importation into the country of destination constitutes a measure having an effect equivalent to quantitative restrictions within the meaning of Article 30 of the EEC Treaty. In so far as such inspection is intended systematically to check compliance with the hygiene requirements laid down by Council Directive 71/118/EEC of 15 February 1971 on health problems affecting trade in fresh poultrymeat, it cannot be justified under Article 36 of the EEC Treaty.
2. Article 11(2) of Regulation No 2777/75 of the Council of 29 October 1975 on the common organization of the market in poultrymeat, which prohibits measures having an effect equivalent to quantitative restrictions, concerns trade with nonmember countries and does not apply to intra-Community trade.
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4. The term “physical inspections” within the meaning of Council Directive 83/643/EEC of 1 December 1983 on the facilitation of physical inspections and administrative formalities in respect of the carriage of goods between Member States must be understood as covering all inspections of goods which involve physical contact with them. The term “administrative formalities” must be understood as covering all operations which involve the checking of documents and certificates accompanying goods and are intended to ensure by simple visual inspection that the goods correspond to the documents and certificates, where such operations may be carried out by officials having general authority to check goods at the frontier. On the basis of those definitions, it is for the national court to decide in which category the measures referred to in the fourth question should be classified, having regard to the manner in which they are carried out.
5. The term “inspections” in Article 2 of Directive 83/643 must be interpreted as meaning that only physical inspections within the meaning of Article 1(1) of the directive are to be carried out solely by means of spot checks, and no conclusion can be drawn from that article regarding the manner in which administrative formalities are to be completed.’
11. Following that judgment, the Commission, which, in its application, had claimed that all the systematic inspections carried out in the Federal Republic of Germany were contrary to Community law, abandoned some of its initial conclusions. It now criticizes the Federal Republic of Germany only for carrying out systematic inspections (entailing a requirement to make a prior declaration) which involve more than a simple check that the documents accompanying the goods are in order, and a visual inspection thereof, intended to ensure that they conform with the said documents and carried out by officers having general authority to inspect goods.
II — Written procedure and conclusions of the parties
1. By application lodged at the Court Registry on 10 October 1988, the Commission brought the present action, in which it claims that the Court should: (i) declare that, by subjecting, pursuant to Paragraph 24 of the Geflügelfleischhygienegesetz (Law on poultrymeat hygiene) in conjunction with paragraph 7 and Annex 4, Point 1 of the Geflügelfleischuntersuchungsverordnung (Regulation on the inspection of poultry-meat), fresh poultrymeat coming from other Member States to systematic inspections at frontiers (entailing the requirement of a prior declaration) involving more than straightforward checking to ensure that the documents and certificates accompanying the goods are in order and also a visual inspection of the goods, intended to ensure that they correspond to those documents, and carried out by officials having general authority to check goods at the frontier, the Federal Republic of Germany has failed to fulfil its obligations under Article 30 of the EEC Treaty, under Regulation No 2777/75, under Council Directive 71/118/EEC and under Council Directive 83/643/EEC; (ii) order the defendant to pay the costs.
2. The Federal Republic of Germany, the defendant, claims that the Court should: (i) dismiss the application; (ii) order the Commission to pay the costs.
3. Upon hearing the Report of the Judge-Rapporteur and the views of the Advocate General, the Court decided to open the oral procedure without any preparatory inquiry.
III — Submissions and arguments of the parties
1. In support of its amended conclusions, the Commission puts forward the following submissions and arguments. The Federal Republic of Germany has infringed Directive 71/118, since the Court clearly held in its judgment of 20 September 1988, cited above, that, under the general system of control envisaged by that directive, the products covered by it may no longer, when crossing an intra-Community frontier, be systematically subjected to inspections other than those of an administrative nature which apply to all goods crossing the frontier. Despite that fact, the German rules still impose the requirement of special veterinary inspections. Since Directive 83/643 is applicable, the practical effects of Directive 71/118 are limited. The obligation to declare the goods in advance is contrary to Community law. The removal of that obligation is a clear consequence of the discontinuance of inspections by veterinary surgeons. The Federal Republic of Germany does not, however, appear ready to take the measures required, in that connection, as a result of the judgment of 20 September 1988. Veterinary inspections constitute the main obstacle to clearance through customs and are liable to lead to evasion of the legal effects of Directive 71/118. Moreover, the Commission adheres to the view that any systematic opening of refrigerated transport vehicles gives rise to more problems than benefits. The concept of physical interference with goods, used in the judgment of 20 September 1988, is not limited to straightforward touching of the goods but extends to any handling thereof, that is to say any movement, opening of packages or containers, the taking of samples, and so forth. The present case should give the Court an opportunity to define that concept. Although it abandoned certain of its conclusions, the Commission claims that the Federal Republic of Germany should be ordered to pay the costs, on the ground that, despite the judgment of 20 September 1988, it refuses to amend its legislation.
2. The Federal Republic of Germany criticizes the Commission for refusing to stay the present Treaty-infringement proceedings pending the judgment to be given by the Bundesverwaltungsgericht having regard to the judgment of the Court of Justice of 20 September 1988. According to the previous decisions of the Court, of which the judgment of 20 September 1988 is the most recent, the only veterinary or health inspections which are prohibited are systematic inspections which constitute a repetition of an equivalent health check carried out under Community legislation in the country of exportation. Other inspection measures, designed to ensure observance of the safeguards embodied in the harmonized inspection system, and in particular checks of accompanying documents, even if carried out systematically, continue to be lawful. In its judgment of 20 September 1988, the Court did not censure the requirement of a prior declaration in respect of the goods or the fact that the checks to ensure conformity of the goods with the documentation were carried out by veterinary surgeons. It expressly entrusted to the national court the task of classifying the German measures, having regard to the interpretation of the concepts of physical inspection and administrative formality which it gave. The Court merely stated that, by reason of their nature, compliance inspections may only be organized in such a way that they can be carried out by an officer assigned to the inspection of goods, without excluding the possibility that a Member State may have the inspection carried out by specially qualified personnel, including veterinary surgeons. The fact that a veterinary surgeon is very well qualified to carry out compliance inspections, far from obstructing free movement, can only have a positive influence. Moreover, Article 5(2) of Directive 83/643 provides that inspections of that type and formalities which are treated as lawful by that directive are to be entrusted to veterinary experts. The obligation to make a prior declaration, far from hampering or slowing down free movement of goods, makes it possible to accelerate completion of the formalities. Nor can that obligation be regarded as unlawful by reason of the alleged illegality of the compliance inspections carried out by veterinary surgeons. Quite apart from the fact that the premiss that the involvement of veterinary surgeons is unlawful has no basis, the obligation to make a prior declaration makes it possible to make plans to ensure that the necessary capacity is available for the inspections and to reduce waiting times to a minimum. The reference in Article 6a of Directive 83/643, in connection with the delegation of powers for systematic controls authorized by the directive, to the requirements concerning production of the necessary documents, the checking of the validity and authenticity thereof and the making of a summary check on the identity of the goods declared in such documents implies that both the summary check of compliance and the prior declaration in respect of the goods are lawful.
F. A. Schockweiler
Judge-Rapporteur
1 Language of the case: German.